UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION UNITED STATES COAST GUARD UNITED STATES OF AMERICA : UNITED STATES COAST GUARD : DECISION OF THE : vs. : VICE COMMANDANT : MERCHANT MARINER’S : ON APPEAL DOCUMENT NO. REDACTED : : NO. 2616 Issued to: JOHN BYRNES : This appeal is taken in accordance with 46 U.S.C. § 7702 and 46 C.F.R. § 5.701. By order dated December 5, 1997, an Administrative Law Judge (ALJ) of the United States Coast Guard at Baltimore, Maryland, suspended Appellant’s merchant mariner’s document upon finding a charge of misconduct proved. Two of the four specifications supporting the charge of misconduct were found proved. The first of the proved specifications alleged that Appellant, while under the authority of his merchant mariner’s document aboard the S.S. EXPORT PATRIOT, had intoxicating beverages within his quarters in violation of ship regulations. The second of the proved specifications alleged that Appellant, while under the authority of his merchant mariner’s document aboard the S.S. EXPORT PATRIOT, wrongfully disobeyed a lawful command of the Master to submit to a chemical test. The hearing was held in New York, New York, on May 5 and 7, 1997. Appellant was represented by counsel and entered a plea denying each specification under the charge of misconduct. The ALJ heard eight (8) witnesses and entered nine (9) exhibits into evidence. The ALJ issued a written Decision and Order (D&O) on December 5, 1997. He found the charge and two of the four specifications proved, and ordered that the Appellant’s merchant mariner’s document and all other Coast Guard issued documents BYRNES NO. 2616 and licenses suspended for a period of six (6) months to begin upon the immediate surrender of such documents to the nearest Coast Guard station. Additionally, the ALJ ordered that if the Appellant was found liable for any other offenses, including the use of drugs, alcohol, failure to obey orders, or similar substantial violations, within the twelve (12) months immediately following the end of the original six (6) month suspension period, all of the Appellant’s Coast Guard issued licenses and documents would be automatically revoked. The D&O were served on the Appellant on December 8, 1997. The Appellant filed a timely notice of appeal on December 30, 1997, and perfected it on February 2, 1998. APPEARANCE: Mr. Sidney H. Kalban, 360 West 31st Street, 3rd floor, New York, New York, 10001, for Appellant. The Coast Guard Investigating Officer was Chief Warrant Officer Richard Elliot. FINDINGS OF FACT The Appellant was serving as an electrician/DEMAC aboard the S.S. EXPORT PATRIOT when the alleged violations occurred. Investigating Officer’s (hereafter I.O.) Exhibits 4, 9 and Transcript (hereafter TR) at 189, 268. The vessel was docked in Cadiz, Spain on February 17 and 18, 1997. See TR at 24. During the evening of February 17, the Appellant consumed alcohol before he went aboard the vessel and while ashore the Appellant also purchased some wine. See TR at 269, 290. The Appellant returned to the vessel and placed the wine in his locker. See TR at 344. The company policy governing the EXPORT PATRIOT requires that any alcohol brought aboard the vessel must be immediately checked in with the Chief Steward. The Chief Steward is required to store the alcohol in the slop chest. Company policy also forbids any crewmember from 2 BYRNES NO. 2616 consuming alcohol while on board the vessel. See I.O. Exhibits 3, 4 and TR at 37, 65, 77, 183, 206, 221, 222. This company policy was made part of the instruction given to each S. S. EXPORT PATRIOT crewmember including the Appellant. See I.O. Exhibits 3, 4, 8 and TR at 25, 74-78. At approximately 0150 on February 18, 1997, the S. S. EXPORT PATRIOT surged forward unexpectedly and broke away from the pier. See TR at 81. The Appellant, who was manning the capstan and winch, followed orders during this breakaway. See TR at 41, 174, 271-272. The vessel returned to the dock and moored so cargo operations could be completed at 0329 on February 18, 1997. See IO Exhibit 2 and TR at 41. After completion of cargo operations and a determination that the breakaway had not caused any damage, the ship departed the dock at 0440 hours on February 18, 1997. See I.O. Exhibit 2 and TR at 45. During the departure undocking, the third mate supervised and gave orders to the Appellant. See TR at 26, 40, 288. The third mate observed that the Appellant was overly talkative and unsteady on his feet and he believed the Appellant to be intoxicated. The third mate so notified the bridge at approximately 0600 on February 18, 1997. See I.O. Exhibit 8 and TR at 33-36, 194, 195. The Master told the third mate to relieve the Appellant from his duties. See TR at 195. The Master also told the ship’s Chief Mate to check whether or not he observed the Appellant to be intoxicated, and that he was to search the Appellant’s room with the third officer and the cadet. See I.O. Exhibit 8 and TR at 84. The Chief Mate, on speaking with the Appellant, found him to be uncooperative and smelling of alcohol. The Chief Mate believed the Appellant was intoxicated. See TR at 85, 86. The third mate, the Chief Mate and deck cadet then searched the Appellant’s room and found two one liter cartons of wine. See IO Exhibit 8 and TR at 87, 88, 126, 196, 197. The Master then directed the 3 BYRNES NO. 2616 Chief Mate, the third mate and the deck cadet to bring the Appellant to his office to be tested. See IO Exhibit 8 and TR at 196. The Appellant was loud and argumentative when brought before the Master to take a breathalyzer test and the Master believed he was intoxicated. See TR at 197-199. The Master of the S. S. EXPORT PATRIOT was trained to give a breathalyzer test. In giving the test, the Master asked the Appellant to sit so that, in accordance with company policy and the instructions coming with the testing equipment, he could observe the Appellant for fifteen minutes before administering the test. See TR at 202, 203. The Appellant initially refused an order of the Master to sit for observation and take a breathalyzer test. See TR at 91, 197, 293, 294. After about five to twenty minutes, the Appellant told the Master he had to use the bathroom. After some discussion between the Master and the Appellant, the Appellant did eventually leave with the Master’s permission. He then defecated on the deck. See TR at 92, 201, 202. The Appellant returned shortly thereafter to the Master’s stateroom where he threw toilet paper towards the Master and stated, “You sir, are beneath contempt.” See TR at 93, 203, 296. The Master repeated to the Appellant to sit and take a breathalyzer. See TR at 93, 203. The Appellant again refused to take the breathalyzer and left without permission. See TR at 93, 203, 296. The Appellant sailed on the S. S. EXPORT PATRIOT under articles which is a contract between the Master and seaman, including the Appellant, wherein the seaman agrees, among other things, to obey the orders of the Master. U.S. law and Coast Guard regulations govern the articles. See I.O. Exhibits 7, 8 and TR at 188, 189. During a second search of the Appellant’s stateroom, a third carton of wine was found. See TR at 129, 346. The Appellant tested negative for alcohol consumption as a 4 BYRNES NO. 2616 result of a test given about twenty-four (24) hours after he was originally ordered to take a test. See TR at 220. BASES OF APPEAL Appellant’s bases of appeal are as follows: 1. That the ALJ’s reliance solely on conflicting testimony renders his decision inherently incredible. a. The ALJ’s acceptance of conflicting telephonic testimony in the face of reliable documentary evidence to the contrary is inherently incredible. b. The ALJ did not address the inconsistencies where the witnesses contradicted each other concerning the alcohol policy on the ship and the ALJ’s reliance on conflicting testimony rather than the published alcohol policy is inherently incredible. 2. That the Master’s order was unlawful, because under the circumstances, it was impossible for the Appellant to obey the command to submit to a chemical test. a. The appellant was unable to control his bodily functions and requiring the Appellant to sit for the test would have forced him to surrender his basic human dignity. These circumstances therefore made it impossible for the Appellant to obey the command to submit to a chemical test. OPINION I Appellant’s first ground for appeal is based on the assertion that the ALJ’s reliance solely on conflicting testimony renders the decision inherently incredible. 5 BYRNES NO. 2616 It must first be stated that the ALJ has broad discretion in determining the credibility of witnesses and in resolving inconsistencies in the record. See Appeal Decisions 2554 (DEVONISH), 2492 (RATH). Moreover, where there is conflicting testimony, it is the function of the ALJ, as fact-finder, to evaluate the credibility of witnesses and resolve inconsistencies in the evidence. See Appeal Decisions 2474 (CARMIENKE), 2424 (CAVANAUGH), 2340 (JAFFEE), 2333 (AYALA), 2302 (FRAPPIER), 2460 (REED). In this case, the ALJ heard the testimony of numerous individuals who were aboard the S.S. EXPORT PATRIOT at the time of the Appellant’s misconduct as well as the testimony of the Appellant himself specifically regarding the alcohol policy of Farrell Lines, Inc.